The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com

Monday, August 28, 2017

VW exec gets higher sentence than prosecutors request

Although prosecutors asked for 3 years, a federal judge sentenced VW exec James Liang to 40 months. If the executive branch is asking for a particular sentence, that should be the ceiling for judges... but that's not the law unfortunately.

A Michigan federal judge on Friday sentenced a Volkswagen AG
engineer who pled guilty to charges stemming from the diesel emissions
scandal to 40 months in prison, slightly longer than the three-year
prison term sought by prosecutors.

After months of delays, U.S. District Judge Sean Cox sentenced James
Liang to three years and four months in prison. Liang, accused of
helping facilitate the installation of so-called defeat devices to skirt
U.S. emissions testing in about half a million vehicles, pled guilty in
September to a count of conspiracy to defraud the United States, commit
wire fraud and violate the Clean Air Act.

Liang was also fined $200,000, due immediately, more than the $20,000
fine requested by prosecutors. He also agreed to be deported to Germany
after finishing his prison sentence. Liang is a German citizen.

At the hearing on Friday morning, Judge Cox said that Liang was a member
of a long-term conspiracy and that the scandal was “a stunning fraud on
American consumers,” a courthouse observer told Law360.

Liang’s attorney, Daniel V. Nixon of Byrne & Nixon LLP, said at the
hearing that Liang was the first person to accept responsibility for
what happened and that he had cooperated with prosecutors and agreed to
testify against another VW executive, Oliver Schmidt, if Schmidt’s case
had gone to trial, according to the observer.

14 comments:

Anonymous
said...

The rules provide for a mechanism whereby a Federal Judge can agree to be bound by a specific sentence set by the parties. But outside Rule 11(c)(1)(C), a judge has to determine what she thinks is the appropriate sentence regardless of what the parties think. You are just as bad as legislators who want to take away all judicial discretion at sentencing.

Anyone else catch the Hon. William J. Zloch as part of a group of St Thomas Aquinas alums singing happy birthday to George Smith during Friday's national telecast of high school football? The Judge looked good.

David, I respectfully disagree. Lawyers from all sides have been saying that judges should have greater discretion in sentencing and they should. As a former prosecutor, many times judges would depart from the "ceiling" I recommended, and I recognized it was their call. Article III judges generally have sentenced hundreds of individuals, if not thousands, over the course of a long career. They have the experience to know what behavior is truly egregious and what is not. That is why the arguments regarding mandatory minimums have such weight, because the Court through its wisdom and understanding of what is happening in its jurisdiction, as well as the individual 3553 factors unique to each person, have the ability to make what is generally the right call.

We have guys getting sentenced to 5, 7 or more years for committing minor crimes comparably speaking. They are black and not rich. The fact that the government recommended 3 years is the real travesty here. Maybe 3 years is an appropriate sentence given the crime, but it is certainly not an equitable one when you compare it to others that are being handed out.

9:43 why don't you provide an actual example of someone less culpable black and poor sentenced to more time

9:51 why don't you provide an example of anyone actually prosecuted for 1028A for stealing just 500 using a single identity

Do you both think the guidelines for financial crimes are too low? Doesn't the fact this guy is non-violent cooperator make a difference? I'm not ruling out the possibility that perhaps this sentence was too lenient comparatively, but sheesh aren't you essentially suggesting the judge and prosecutors are racist?

I guess decades of crack defendants (most of whom were African-American and poor) getting sentenced 100 times more harshly than powder cocaine defendants (mostly white) just doesn't do it for you huh. BTW - it's STILL NOT 1:1. Crack defendants are just getting sentenced 18 times harsher for what everyone acknowledges is the exact same offense. So I am not suggesting anything, I am saying that the criminal justice system as a whole is racist. It also favors those with money.White defendants, especially those with money, are more likely to bond out pre-trial, which leads to a more favorable negotiating position, which leads to lower charges which leads to less convictions and lower sentences.

9:23 point taken on crack v cocaine and the guidelines. But I read the two comments above as suggesting specific racism today, as reflected in this particular sentence and sentencing rec, not as a result of an out of whack guideline. Is there a specific crack prosecution you can cite where a black defendant is less culpable than this guy and got more time?

Just curious. I see where you are coming from, just not ready to jump on the racism bandwagon yet with respect to this particular case.

Oh Boy. Let's see. On the one hand: The VW executive got 3 1/2 year sentence for being part of a conspiracy that defrauded half a million new car buyers, defrauded the United States and help put half a million cars on the road whose added pollution are helping devastate our environment.On the other hand: under federal law, all it takes is a sale of 28 grams of crack (a very small amount) to subject a defendant to a mandatory minimum sentence of 5 years (takes 110 grams of powder cocaine). So yeah, I would imagine there are one or two (thousand) crack defendants who are less culpable than the VW Executive.

Again, point taken. But I'm guessing the USAO doesn't accept for prosecution a defendant who made a single sale of crack. I'm guessing most one-time crack dealers are prosecuted by the state. Am I wrong? Am I being too dense to require comparison to an actual case?

I'm no expert in crack v cocaine, but online it says crack is more addictive because onset of high is quicker and withdrawal worse. Is that true? Does the difference if any between the 2 justify any differential in sentencing? Remember even if blacks use crack at a higher level than whites, the crack dealer would thus victimize more blacks than whites, possibly with a form of the drug which is more addictive than powder. Curious what you think because you are advocating 1:1.

I give up. This will be last post.The generally conservative Sentencing Commission spent more than a decade advocating for 1:1 because all the evidence, including hearings held before the commission, lead to conclusion that crack was no more addictive or dangerous than powder. A prior drug conviction would up the mandatory minimum to ten years for 28 grams of crack. Nothing prevents the federal government from prosecuting first time offenders.

The Southern District of Florida blog was started in 2005 by David Oscar Markus, who is a criminal trial and appellate lawyer in Miami, Florida. He frequently practices in federal courts around the country, including his hometown, the Southern District of Florida and the 11th Circuit Court of Appeals. He is a former law clerk to then-Chief Judge of the District, Edward B. Davis.